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2019 DIGILAW 90 (KAR)

Babu v. State of Karnataka

2019-01-08

P.G.M.PATIL

body2019
JUDGMENT : P.G.M. PATIL, J. 1. Heard the learned counsel for the petitioner and learned counsel for respondent No.2 and learned High Court Government Pleader. 2. Criminal Petition No.200942/2017 is filed by the de facto complainant as per the charge sheet being aggrieved by the order dated 10.06.2016 passed on the application under Section 228(1) of Cr.PC by the Special Judge and II Additional Sessions Judge, Vijaypur in Special Case No.16/2015. 3. Criminal Revision Petition No.200069/2016 is filed by the State challenging the above stated order. Therefore, both the petitions were heard together and disposed of by this common order. 4. It is the case of the prosecution before the Special Court that on 27.06.2014 the complainant Babu Hasimfeer Kyatannavar lodged the complaint before the respondent-police against the accused-respondent No.2 herein for the offences under Sections 324, 504, 506 of IPC and under Section 3(1)(x) of SC /ST (PA) Act On the basis of the said complaint, the case was registered and after investigation the respondent-police filed charge sheet against the accused No.2 for the aforesaid offences, which was registered in Special Case No.16/2015 on the file of II Additional Sessions Judge, Vijayapura. In the course of proceedings, the accused filed an application under Section 228(1) of Cr.PC for discharge and to delete the charge under Section 3(1)(x) of SC/ST (PA) Act. The State filed objections on the said application, the learned Special Judge after hearing both the parties allowed the application under Section 228(1) of Cr.PC and U/sec 3(1) (x) of SC/ST (PA) Act, stating that the complainant do not belong to schedule caste and therefore the said offences is not attracted. The learned Special Judge further directed to transfer all the records and properties to the Court of JMFC, Basavana Bagewadi to try the offences under Sections 324, 504, 506 of IPC against the accused and the accused was directed to appear before the said Court on 07.07.2016. 5. The de facto complainant as well as the State being aggrieved by the impugned order have filed these petitions one under Section 397 of Cr.PC and other under Section 482 of Cr.PC seeking to quash or set aside the impugned order and direct the accused to face the trial for the aforesaid offences before the Special Court. 6. 5. The de facto complainant as well as the State being aggrieved by the impugned order have filed these petitions one under Section 397 of Cr.PC and other under Section 482 of Cr.PC seeking to quash or set aside the impugned order and direct the accused to face the trial for the aforesaid offences before the Special Court. 6. The learned counsel for the de facto complainant and the learned High Court Government Pleader submitted that the learned Special Judge passed the impugned order only on the basis of the copy of the death certificate issued by Tahasildar in which the name of the father of the complainant is shown as Hasimfeer Kyatannavar and therefore the learned Special Judge jumped to the conclusion that the complainant belongs to Muslim community and does not belong to SC/ST community. The learned counsel further submitted that at the time of hearing the application for discharge the trial Court ought not to have considered the documents produced by accused. The learned counsel is relying on a decision in the case of Amit Kapoor V/s Ramesh Chander and another, reported in, (2013) 1 SCC(Cri) 986. 7. Per contra, the learned counsel for the accused-respondent No.2 submits that the impugned order is a reasoned order and there is no impediment to look into the document produced by the accused especially a document which refers to the caste of the person involved in the case. In support of his argument the learned counsel has relied on the decision in the case of Punit Rai V/s Dinesh Chaudhary, reported in, (2003) 8 SCC 204 . 8. There is no dispute that the name of the father of the complainant is Hasimfeer and the mother of the complainant was one Yellawwa and it is stated that on marrying the said Hasimfeer, she automatically got converted to Muslim community. The learned Special Judge has mainly relied on the copy of the survivor certificate obtained by the complainant and copy of the death certificate of the father of the complainant Hasimfeer which were produced by accused and has come to the conclusion that the father of the complainant belongs to Muslim community and as such the offences under Section 3(1)(x) of SC/ST (PA) Act is not attracted. The copy of the survivor certificate and death certificate of Hasimfeer are made available by the learned counsel for the accused respondent No.2 before this Court. Either in the survivor certificate or in the death certificate of Hasimfeer, the caste of the said Hasimfeer is not stated, only on the basis of the name of the father of the complainant as Hasimfeer, the learned Special Judge has come to the conclusion that he belonged to Muslim community and therefore the fact that the mother of the complainant belonged to Hindu Madar community prior to her marriage does not confer the caste of the mother on the complainant. It is also necessary to observe that apart from the complainant, CW4-Prashant Kyatannavar is also stated to be a victim in the case and there is no dispute that he belongs to schedule caste community. This aspect of the matter was not at all considered by the learned Special Judge while passing the impugned order. When the material is available on record to show that CW4-Prashant who belongs to schedule caste community is also victim in the case, the accused would not have been discharged for the offence under Section 3(1)(x) of SC / ST (PA) Act. It is further seen that caste certificate issued by the Tahasildar, Basavana-Bagewadi in respect of the complainant and his family members which is part of the charge sheet names of the complainant Babu, CW4-Prashant and another Basappa namely accused are shown and it is shown that the complainant Babu and CW4-Prashant belonging to schedule caste where as the accused belongs to Category-I. Therefore, there is sufficient material on record, so as to attract the offence under Section 3(1)(x) of SC/ST (PA) Act. Moreover, the learned Special Judge ought not to have considered the documents produced by the accused at the time of passing order on the application under 228 of Cr.PC as held in the case of Amit Kapoor referred to Supra. The Hon'ble Apex Court in para 27.12 has observed as follows. "27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed therewith by the prosecution." 9. "27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed therewith by the prosecution." 9. In the case of Punit Rai referred Supra relied by the learned counsel for the accused-respondent No.2, the Hon'ble Apex Court has held that: "Determination of Customary law one of the determining factors Under customary Hindu law, a person would inherit his caste from his father A person cannot claim inheritance of Scheduled Caste from his mother merely on the basis of an administrative instruction issued by the Govt." 10. On the basis of this observation, the accused cannot contend that the provisions of 3(1) (x) of SC/ST (PA) Act is not attracted in the case for the reason that there is another victim in the case namely CW4 Prashant, who admittedly belong to SC community. In view of these reasons, the impugned order being illegal and against material on record is liable to be quashed or set aside as sought for and accordingly both the criminal revision petition and criminal petition filed under Section 397 Cr.PC and under Section 482 Cr.PC deserves to be allowed. Accordingly, I proceed to pass the following ORDER The Criminal Petition No.200942/2017 and Criminal Revision Petition No.200069/2016 are allowed. Order dated 10.06.2016 passed by the Special Judge and II Additional Sessions Judge, Vijaypur in Special Case No.16/2015 on the application filed under Section 228(1) of Cr.PC is hereby quashed/set aside. The matter now pending on the file of JMFC, Basavana-Bagewadi in CC No.682/2016 is remitted back to the Court of Special Judge and II Additional Sessions Judge, Vijayapur and restored to its original file namely Special Case No.16/2015. The Special Judge and II Additional Sessions Judge, Vijayapur is directed to re-register the case and secure the presence of the accused and proceed with further trial and dispose of the case in accordance with law. The accused/respondent No.2 herein is directed to appear before the Special Judge and II Addl. Sessions Judge, Vijayapur on the receipt of the notice and cooperate for the trial of the case.